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ERLC to court: Mandate violates companies' religious freedom

Court to hear arguments March 25

WASHINGTON (BP) -- The Obama administration's abortion/contraception mandate violates a federal law protecting the religious freedom of for-profit corporations and their owners, the Southern Baptist Ethics & Religious Liberty Commission has told the U.S. Supreme Court as part of a friend-of-the-court brief.

The Ethics & Religious Liberty Commission signed on to the brief filed Tuesday (Jan. 28) in support of Hobby Lobby and other family owned businesses that have conscientious objections to a regulation that requires employers to provide abortion-causing drugs for their workers.

The ERLC-endorsed brief was one of more than 50 filed the same day with the high court on behalf of the companies. Among the other briefs was one signed on to by Southeastern Baptist Theological Seminary; its president, Daniel Akin; Southern Baptist megachurch pastor and author Rick Warren; Southern Baptist professors; and at least one other Southern Baptist pastor.

The briefs urging invalidation of the abortion/contraception mandate, which is a rule implementing the 2010 health care reform law, came in cases that have been consolidated for March 25 arguments before the Supreme Court.

The briefs ask the justices to uphold a lower court decision in favor of Hobby Lobby and its sister corporation Mardel, Oklahoma City-based retail chains owned by the pro-life evangelical Christian Green family. They also call for the justices to overturn a ruling against Conestoga Wood Specialties, a Pennsylvania business owned by the Hahns, pro-life Mennonites.

ERLC President Russell D. Moore, in a Jan. 28 podcast, said the justices' ruling will be "impactful for all our people in our churches for probably the next 100 years, regardless of what the court does."

Akin, in a written statement, said the Hobby Lobby case is "a critical issue that impacts freedom of conscience and religious liberty and conviction.... Christians everywhere should pray for God to move on the hearts of the justices of the Supreme Court to make the right decision."

The ERLC-signed brief, written by University of Virginia law professor Douglas Laycock, contends Congress clearly understood the 1993 Religious Freedom Restoration Act (RFRA) to provide "universal coverage," including to for-profit companies and their owners. It also argues that larger religious liberty traditions -- including state and federal conscience rights laws -- are consistent with protecting for-profit corporations.

The ERLC, Moore said in a written statement, "is proud to stand with a broad coalition of allies committed to religious liberty. Our participation in the Laycock brief signals our confidence that the Religious Freedom Restoration Act was designed to protect everyone -- including those operating businesses.

"We're in this because religious liberty isn't a government grant, but a human right grounded in the image of God," Moore said. "Our Baptist forefather [and 18th-century religious freedom champion] John Leland wasn't content to trust politicians with tyranny over the conscience. We are his sons and daughters, and we will carry the banner of soul freedom to the Supreme Court and beyond."

A major question the Supreme Court will consider in the case is whether owners of for-profit companies can exercise their religion in the conduct of their businesses.

In a July ruling against Conestoga Wood, a divided three-judge panel of the Third Circuit Court of Appeals in Philadelphia said for-profit secular organizations "cannot engage in religious exercise." A month earlier, however, the 10th Circuit in Denver rejected the Obama administration's argument that protections under RFRA do not extend to for-profit companies. The 10th Circuit ruled that corporations such as Hobby Lobby and Mardel "can be 'persons' exercising religion for purposes" of RFRA.

The Obama administration's stance "appears to be that once they incorporate, the Greens and the Hahns have no religious rights that a government is bound to respect," according to the ERLC-endorsed brief, which the Christian Legal Society (CLS) organized and filed. "The corporation can be required to do absolutely anything, and the individual owners who carry out the corporation's work have no religious-liberty right to complain."

There are "no limits" to the administration's position, the brief contends.

"If the Greens and the Hahns forfeited their rights to religious liberty when they incorporated their businesses ... then it would not matter if the government required coverage for all abortions, by any method, in any trimester," the brief notes. "It would not matter if the government required coverage for partial-birth abortions, or assisted suicides, or unconsented euthanasia."

The ERLC-signed brief also states, "If Mardel sold child pornography instead of Christian books, the government would not allow the Greens, actively involved as shareholders, directors, officers, and managers, to defend on the ground that 'It wasn't me; the corporation did it.'"

Both the text and legislative history of RFRA demonstrate that all claims -- including those by for-profit companies and their owners -- are covered by the law, the brief states.

RFRA's sponsors "resisted all efforts to add exceptions to coverage," according to the brief. "A definition in an early version of the bill, limiting coverage to 'natural persons' and religious organizations, was eliminated in all later drafts."

Debate on the Religious Liberty Protection Act, a bill considered in the late 1990s but never approved by Congress, affirmed RFRA's protections applied to corporations, the ERLC-signed brief states.

Others signing on to the CLS brief with the ERLC were the American Bible Society, Prison Fellowship Ministries, Association of Christian Schools International, Association of Gospel Rescue Missions, Anglican Church in North America, The Lutheran Church-Missouri Synod, The Church of Jesus Christ of Latter-day Saints and World Vision.

The brief endorsed by Southeastern Seminary, Akin, Warren and other Southern Baptists –- as well as the Manhattan Declaration and leading evangelical theologians -- focused on the abortion/contraception mandate's violation of the Christian doctrine of work.

Biblical theology teaches a person's "vocation is ordained by God as a spiritual enterprise in which Christians must serve in accordance with their spiritual callings," the brief states. Mandating that a Christian choose between disobeying government rules or religious beliefs "substantially burdens" free exercise of religion, according to the brief, which was filed by the Institute for Faith, Work & Economics.

Among others filing a total of 56 briefs Jan. 28 in support of Hobby Lobby and Conestoga Wood, according to the Becket Fund for Religious Liberty, were the National Religious Broadcasters, National Association of Evangelicals, Christian Medical Association, Council for Christian Colleges and Universities, U.S. Conference of Catholic Bishops, Democrats for Life, congressional members from both political parties, 20 states, women's organizations, constitutional law scholars and Roman Catholic theologians.

"The broad support shows that Americans of many faiths and backgrounds want to see religious freedom protected," Lori Windham, senior counsel with the Becket Fund, said in a written statement. "Religious freedom is important to Democrats and Republicans, to Christians, Muslims, Jews, and others."

The ERLC also signed on to a brief in October asking the Supreme Court to review the lower-court decisions in the Hobby Lobby and Conestoga Wood cases.

The 25 briefs filed Jan. 28 in opposition to the two businesses, according to Becket Fund, represented, among others, more than 100 Democratic members of Congress, 16 states, ACLU and Freedom From Religion Foundation.

The Department of Health and Human Services (HHS) issued the abortion/contraception mandate on behalf of the Obama administration as part of implementing the Affordable Care Act. In addition to contraceptives, the mandate requires coverage of such drugs as Plan B and other "morning-after" pills that possess a post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The rule also covers "ella," which -- in a fashion similar to the abortion drug RU 486 -- can act after implantation to end the life of the child.

HHS provided an exemption to the rule for churches and their auxiliaries but did not extend it to non-church-related nonprofit organizations and for-profit companies that object. Some conscientious objectors oppose underwriting all contraceptives, while others -- such as Hobby Lobby and Conestoga Wood -- protest paying only for abortion-causing drugs. The administration also offered an accommodation for non-church-related religious organizations, but critics said it was inadequate because it still forces such groups to provide access to the drugs through third parties.

For-profit and nonprofit corporations have filed a total of 91 lawsuits against the mandate, according to the Becket Fund. GuideStone Financial Resources, the Southern Baptist Convention's health and financial benefits entity, combined with two of its health plan participants to file one of the suits in October.

The Supreme Court delivered a temporary win for mandate foes Jan. 24, when it continued an injunction blocking enforcement of the mandate against the Little Sisters of the Poor, an order of nuns in Denver, and other Catholic organizations. The injunction will remain in place while the 10th Circuit considers the lawsuit.

Hobby Lobby, a national arts and crafts retail chain, has said it will not comply with the mandate if it loses in court. The chain of nearly 590 stores could face fines totaling $1.3 million a day. Mardell is a Christian bookstore chain.

Hobby Lobby seeks to honor God "by operating the company in a manner consistent with Biblical principles," according to its statement of purpose. Its stores are closed on Sundays.

The Hahn family, which owns Conestoga Wood, has been living under the mandate since its group health plan was renewed in January 2013. Refusal to abide by the mandate could cost the family an estimated $95,000 a day. Conestoga Wood is a wholesale manufacturer of kitchen cabinet parts.

The 10th Circuit case is Sebelius v. Hobby Lobby, while the Third Circuit case is Conestoga Wood v. Sebelius. Kathleen Sebelius is the HHS secretary.

The high court is expected to issue a decision before the end of its term in late June or early July.

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